19 Ind. App. 58 | Ind. Ct. App. | 1898
— Appellant filed with ■ the board of commissioners of Marion county a claim to recover taxes in a named sum alleged to have been wrongfully assessed and collected. There was a special finding of the facts, from which it appears that appellant is a corporation formed by the consolidation of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company, the Indianapolis & St. Louis Railway Company, and the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company; that the articles of consolidation provide, among other things, that all the rights, franchises, privileges, property, and appurtenances of every description, choses in action, debts, dues, and demands of each of the several companies,
It is argued by counsel for appellee that the claim filed by appellant was insufficient in that it contains no averment that any amount of taxes had been paid by appellant, and no fact is stated showing any right in appellant to recover any taxes paid by the companies named; and that there is no charge that the taxes were wrongfully assessed, in the sense that the taxes were not justly due upon the property; and that the findings which are outside of the claim filed can avail the appellant nothing. It has frequently been held that the consolidated corporation succeeds to the rights of its constituent corporations, and that it becomes liable for the debts and obligations of the original companies. Cleveland, etc., R. W. Co. v. Prewitt, 134 Ind. 557, and cases there cited. And by the express provisions of the articles of consolidation in the case at bar the right to recover the taxes alleged to have been wrongfully assessed is in the appellant, if the right to recover such taxes was in the constituent companies before the consolidation.
We deem it unnecessary to set out the claim in full. The doctrine frequently declared by the Supreme and this court is that very liberal rules of pleading prevail in the commissioners’ court, and that when there is enough alleged to inform the board of the nature
At the time the assessment complained of was made the statutory provisions respecting the listing and assessing the personal property of railroad companies were different from the provisions respecting other corporations. See section 6357-6372, R. S. 1881. Under the statutes in force at the time the assessment complained of was made it was the duty of a railroad corporation, between the first day of April and the first day of June, each year, to return to the county auditor a verified list or schedule of the personal property of such company; that the list should “contain a full and correct inventory of all the other personal property of such railroad company, including the tools and materials for the repairs, the machinery, fixtures, and stationary engines,” and also “an inventory of all the real estate (other than that denominated ‘railroad track’) owned by the said railroad company,” and that such property should be “treated in. all respects, in regard to assessment and equalization, the same as other similar property belonging to individuals, except that it shall be treated as property belonging to railroads, under the terms ‘lands,’ ‘lots,’ and ‘personal property.’ ” It is made the duty of the county auditor as soon as he receives such list to return to the proper assessor a copy of so much of the list as contains this
Section 5813, R. S. 1881, provides that where any person or corporation should make it appear, by proper proof, to the board of commissioners, that such person or corporation has paid any amount of taxes which were wrongfully assessed against such person or corporation in such county, it should be the duty of the board to order such taxes to be refunded to said payor from the county treasury so far as the same were assessed and paid fpr county taxes. Section 5814, R. S. 1881, made provision for refunding such portion of such amount so wrongfully assessed and paid as was for state purposes and had been paid into the state treasury. It is argued by counsel for appellee that the finding fails to show that these taxes were wrongfully assessed, and that it is only for the refunding of such taxes that the statutes provide a remedy.
But if the board of equalization had no authority to increase the valuation of the property as it appeared in the schedules after they had passed from the hands of the assessor, and if, without such authority, the board did increase the assessment as lawfully made, such unauthorized interference is unlawful, and was wrongful, within the meaning of the statute, and the party aggrieved would be entitled to have the taxes upon such increased valuation refunded as the statute provides. Newsom v. Board, etc., 92 Ind. 229; Board, etc., v. Senn, 117 Ind. 410; Hennel v. Board, etc., 132 Ind. 32; Board, etc., v. Armstrong, 91 Ind. 528; DuBois v. Board, etc., 10 Ind. App. 347. See Durham v. Board, etc., 95 Ind. 182; Board, etc., v. Murphy, 100 Ind. 570.
It is contended by appellee’s learned counsel that
It is evident that, under the section of the statute above referred to, it was the intention of the legislature that the personal property of railroads of the character designated in those sections should be treated as the personal property of individuals in so far as the assessment and equalization are concerned. If, during the year in which these assessments were made, there was in force a statute requiring that the assessment of personal property of individuals should be submitted to a board of equalization, then the personal property mentioned in this case was subject to the same law for the same purposes. It is made the duty of the township assessor, when the county auditor has returned the company’s schedule of such .property to him, to list and assess such property. It does not appear that the assessor changed the schedule as returned by the companies. But, in the absence of any showing to the contrary it will be presumed that he did his duty, and that he did assess the property, and that he placed upon it the valuation made by the companies. So that, when the property was before the board of equalization, it was there upon the assessment made by the township assessor.
In the case of individual property, the schedule was to be returned direct to the assessor, who could adopt, increase, or diminish the value of the individual’s
So that, when the board oí equalization assumed to act upon the property in question, it did not attempt to make an original assessment of the property, but attempted to change the assessment as made by the township assessor. Such board had no power to make an original assessment, and the question to be determined is whether it had the power to increase the assessment as it had already been made by the assessor. If the board of equalization had any jurisdiction of the assessments in question it was by virtue of section 6397, R. S. 1881. That section gave the board no authority to make an original assessment, and the special finding shows that it increased the valuation of property which had already been assessed. The question is, had the board of equalization that power? Section 6397, supra, was construed by the Supreme Court in the case of Kuntz v. Sumption, 117 Ind. 1. In that case it was held that this section in so far as it undertakes to confer upon the board of equalization powers to increase the valuation of the personal property of an individual, is void, for the reason that no provision is made for giving notice to the taxpayer, the valuation of whose property is to be increased. We do not think it necessary to extend this opinion with a discussion of other questions raised. This court is concluded by the decision of the
The only remaining question necessary to be considered is as to the amount appellant is entitled to receive. It does not appear that, at the time this claim was filed, that the portion of the taxes collected by the county for municipal and township purposes was still in the county treasury; nqr that, while such.taxes were still in the county treasury, the appellee had any notice of appellant’s claim. In the absence of such a finding there can be no recovery in this action for that portion paid as municipal and township taxes. The finding shows that these taxes were paid on and prior to the fifth day of November, 1888, and it appears that the claim was not filed before the board until the 8th day of July, 1891. The municipal and township taxes were paid into the county treasury for the municipalities and townships, and were by the county held in trust for them until distributed as the law directs. In the absence of a showing to the contrary, the presumption is that the county officers performed their duty and distributed these taxes to the proper municipalities and townships, and that, when this claim was filed, they were not in the county treasury. See Newsom v. Board, etc., supra; Mills v. Board, etc., 50 Ind. 436. See, also, Board, etc., v. Tichenor, 129 Ind. 562.
The statute provides for the refunding of taxes from the county treasury so far as the same were wrongfully assessed and paid for county taxes, and provision is also made for recovering the portion that has been paid into the state treasury. Sections 5813, 5814, R. S. 1881. And, where municipal and township taxes are still in the county treasury at the time of filing a claim for a refunding of such taxes, the county becomes a trustee for the claimant, and must